150 Iowa 185 | Iowa | 1911
By its demurrer the defendant questioned the jurisdiction of the court of Jasper county to appoint plaintiff to be guardian of the estate of Elizabeth' Carson, and^ the right of said guardian to maintain an action 'on the certificate of which the ward was a beneficiary, the defendant association not being an incorporation having its principal place of business in this state, but doing business in the state and properly served with notice of the action by service on the State Auditor, the suffi
The allegations of the petition as originally filed, so far as they bear upon the jurisdiction of the court in Jasper county to appoint plaintiff as the guardian of the estate of Elizabeth Carson and the authority of plaintiff as such guardian to maintain this action, were as follows: “First. That the plaintiff is duly appointed, qualified, commissioned and acting guardian of the property of Elizabeth Carson, who is now, and during all of the times herein mentioned has been, a nonresident alien, of unsound mind, residing in the kingdom of Great .Britain, and having both real property and personal property in Jasper county, Iowa, said appointment having been duly and regularly made-by this court and by virtue of sections 225 and 3202 of the Code of Iowa.” Subsequently an amendment to the petition was filed containing the following allegation: “That said Elizabeth Carson was supported by said Archibald Carson from the date of her birth to the time of his death; that said Elizabeth Carson became of unsound mind when she was about twelve years of age, and has ever since remained of unsound mind.”
2. Same: pleadings:pleadings: • surplusage. It is only necessary for the plaintiff in bringing such an action to describe himself as guardian of the ward for ■whom he sues (Code, section 3224), and such allegation is sufficiently made in the petition as amended, The contention for appellant seems to be . that as the allegation m the original petition that plaintiff’s appointment was duly and regularly made by the court appointing him, “and by virtue of sections 225 and 3202” was not superseded by the amendment, plaintiff must be regarded as having been appointed guardian of a nonresident person of unsound mind, having property in the county, under said section 3202, and not as guardian of a person of unsound mind resident of the county under Code, section 3219. But we are clear that the statement as to the section of the Code under which the appointment was made is in the nature of surplusage and wholly immaterial. It can not affect the authority of the plaintiff that the court making the appointment had a wrong conception of the provisions of the statute under which the appointment was made. The appointment must be presumed to have been duly and regularly made under authority of law, and there is nothing in the petition as amended to indicate that it was not duly and regularly made under the authority to appoint a guardian for a resident of unsound mind, no matter what may have been the place of temporary residence of the person for whom such appointment was made.